FSO v Secretary, Department of Education

NCAT Administrative and Equal Opportunity|2023-10-31

REASONS FOR DECISION

This is an application by the respondent to summarily dismiss proceedings.

BACKGROUND

The proceedings involve the Anti-Discrimination Act 1977 (NSW) (AD Act).
On 23 May 2022, the applicant lodged a complaint with Anti-Discrimination NSW that her daughter was discriminated against on the grounds of disability in the area of education.
The applicant's daughter was, at all relevant times, a student at a public primary school.
The applicant has other children, but this complaint specifically involves her daughter.
There have also been other proceedings in the Tribunal involving the parties pertaining to the children of the applicant.

Discrimination Under s 49L(2)(a) of the AD Act

The alleged breaches of s 49L(2)(a) of the AD Act (i.e. the denial of access or limitation of access to a benefit on the grounds of disability) primarily relate to the respondent failing to adhere to the Disability Standards for Education 2005 (C'th) ('the Standards').
There is also a ground identified that the respondent denied the student the "benefit" of a Learning and Support Teacher (LaST).
The relevant alleged failures are: 1. Failing to have regard to, or apply, cl.3.4 of the Standards. The applicant asserts that the said Standards "make it a requirement" that the school consider the views of the parent as well as whether the cost and benefit of making the adjustment is reasonable. The views of the parents that were not considered are identified as an LaST teacher providing assistance in respect of spelling, rather than a School Learning Support Officer (SLSO) providing such assistance. 2. Failing to have regard to, or to apply, cl. 5.2 (2) of the Standards. The applicant asserts that the Standards requires the respondent to "consult with an associate of the students (sic) about whether the disability affects the student's ability to participate in education." The "associate" is the parents of the student. The applicant further asserts that the consultation will "inform whether an adjustment is necessary to ensure the student is able to participate in the courses on the same basis as a student without a disability." The applicant asserts the school received Integrated Funding Support Programme (IFS) to fund an SLSO, but the applicant has not been consulted over how this funding should be allocated based on "how the disability affects the student's ability to participate in education." The applicant asserts the Standards requires the respondent to consult on an ongoing basis. 3. Failing to have regard to, or to apply, cl. 6.2 (2) of the Standards. The applicant asserts the Standards requires the respondent to "consult with an associate of the students (sic) about whether the disability affects the student's ability to participate in education." The applicant submits the Standards requires ongoing consultation to allow for the changing needs of the student. The applicant repeats the previous ground that since the school had received funding to engage an SLSO to assist her daughter, the respondent had, despite numerous requests by the applicant and her husband/partner, failed to consult as to how this funding would be allocated. 4. Failing to have regard to, or to apply, cl 7.2 (2) of the Standards. The applicant asserts the Standards provides that "if a specialised support service is necessary for the student to be able to participate in the activities for which he or she is enrolled, and is a kind provided by the education provider, the provider must take reasonable steps to ensure that the student has access to the service (but may arrange for it to be provided by another person or agency)." The applicant asserts that the respondent's child "required the specialised support from a speech therapist as documented in her Integrated Support Program Application and PLSP. The applicant asserts the school failed to provide "direct engagement of a speech therapist" and the request of applicant to provide speech pathology services to support her child was "denied." 5. Failing to have regard to, or apply, cl 7.2 (2) of the Standards in respect of the respondent "preventing" the applicant and her husband/partner from discussing her child's "IFS allocation" with Mr Murdoch of the respondent's local office Learning and Well-being team. The applicant assert that a senior employee of the respondent, Mr Campbell, imposed a "communication protocol" that the applicant and her husband/partner could not contact Mr Murdoch, which constituted a denial of the "benefit" of the Learning and Well-being officer. 6. The respondent failing to provide contact with a Learning and Support Teacher (LaST). The applicant asserts the LaST "has performed no spelling assessments, these have been completed by the Speech Therapist, funded by us. No learning and support needs have been identified by the LaST, these have been provided by the Speech Therapist, but have not been implemented." The LaST has also, allegedly, had "no involvement with the class teacher" in respect of spelling; and the LaST has "not provided any direct support" to the child in regard to her spelling. The applicant assert this is contrary to the respondent's description of the role and responsibilities of an LaST. The applicant further asserts the LaST has failed to "collaborate" or "consult" with the applicant and her husband/partner, despite them requesting consultation and collaboration. 7. Failing to consider, or apply, cl. 8.3 of the Standards. According to the applicant, that provision requires the respondent to "take reasonable measures to ensure the staff have sufficient information and expertise concerning non-discriminatory methods of service delivery." The applicant submits the "Students with Disabilities in Regular Classes Procedures Document outlines how IFS funds are to be allocated." According to the applicant the respondent has "failed to consult" and it is "unclear" if IFS funds can be used Specialist Support Services. The applicant asserts that "If Specialist Support Services are not available through other funding streams, then it restricts the services available to a student, leading to discrimination. It is a reasonable expectation that IFS funding should be able to be used for Specialist Support Services if this is the most effective 'support package' for the student." 8. Failing to have regard to, or apply, cl. 8.3 of the Standards. According to the applicant, that provision requires the respondent to "take reasonable measures" relating to complaint procedures. The applicant submits that she and her husband/partner (and, by implication, the student) have "been denied the benefit of existing DoE (sic) complaint procedures." 9. Failing to have regard to, or apply, cl. 8.3 of the Standards. The applicant submits that (a) the LaST has not received adequate professional development opportunities to be able to provide the necessary supports" to her child; (b) the child has been "denied the benefit of the expertise of a Speech Pathologist through the Allied Health provider Scheme; and (c) the child had been denied the benefit of the expertise of a Learning and Well-Being officer.

Discrimination under s 49L (2) (c) of the AD Act.

The alleged discrimination is identified as the school failing to provide a report on the child's Personal Learning and Support Plan Goals by the end of term 2". The applicant asserts that the report has not been provided, and is the subject of a GIPA application. The applicant asserts that the child's "decline" in "learning outcomes" was currently being assessed by her treating Speech Therapist.

Discrimination under s 49B (1) (b) of the AD Act.

This alleged discrimination is identified as "restricting the support services to those that can be provided by a SLSO." The applicant submits that her child "requires specialised, individual adjustments" and a "suitably qualified teacher, trained in the specific area of need." According to the applicant, her child "is only able to access supports that an SLSO can provide, restricting her access to support, which is unreasonable."

Documents Attached to the Complaint

In total, the complaint comprises of 247 pages. The Tribunal will not attempt to categorise or describe every single document, but it is appropriate to set out the substance of the documents.
Pages 1-15 set out the grounds of compliant.
The other documents are summarised as follows: 1. A chronology of events; 2. Copious email correspondence between the applicant and the school; 3. Correspondence between the applicant and Mr Campbell, the Director, Educational Leadership Lennox Coast Principals Network. 4. Correspondence between the applicant and the office of the Minister for Education. 5. Correspondence between the applicant and the Office of the Director, Disability and Learning Support, of the respondent. 6. Learning plan for the student. 7. Student behaviour support plan for the student. 8. Correspondence from the student's treating speech pathologist, Ms Wastell. Included in that correspondence is a report from Ms Wastell dated 21 July 2022. That report is copied to the applicant; a Paediatrician; two Clinical Psychologists; an Occupational Therapist; and the "classroom teacher and learning support staff, school." 9. Various documents from the respondent, which involve (a) Speech therapy in schools; (b) Disability strategies; and (c) Students with disabilities in regular classes-funding support.
On 13 October 2022, a delegate of the President of Anti-Discrimination NSW referred the matter to the Tribunal pursuant to s 96 of the AD Act. The President's delegate declined the complaint against named employees of the respondent under s 53 of the AD Act.

Relevant Procedural History in the Tribunal

On 24 May 2023 there was a directions hearing at the Tribunal. Procedural directions were made regarding the provision of Points of Claim; Points of Defence; documentary evidence; and submissions. The parties were directed to file and serve their documents and submissions in hard copy. The proceedings were set down for a final hearing on 16 October 2023 for 2 days.
On 18 July 2023 there was a mediation between the parties at the Tribunal. That mediation involved a number of proceedings of the parties, including this matter. The mediator noted that an agreement had been reached in principle, subject to the execution of a Deed. For reasons it is unnecessary to consider or explore in this decision, these proceedings remained on foot.
On 31 July 2023 there was a directions hearing in the Tribunal before Simon PM. Procedural directions were made extending time for the filing and serving of documents and submissions set out in the directions of 24 May 2023; and facilitating any application to appear by Audio-Visual Link.
The Tribunal also made an order under s 64(1)(a) of the NCAT Act prohibiting the publication or broadcast of the name of the applicant or her children, on the condition that the name can be disclosed in any complaints made to the Anti-Discrimination Board or Human Rights Commission.
On 22 August 2023 there was a directions hearing at the Tribunal before Simon PM. Procedural directions were made again extending the timetable for documents and submissions made on 24 May 2023. The applicant was also granted leave to appear by Audio-Visual Link.
On 14 September 2023, the respondent filed an application for miscellaneous matters in the Tribunal seeking an order that the proceedings be summarily dismissed under s 55 (1) (b) of the NCAT Act.
In conjunction with the application for summary dismissal, the respondent filed and served a written outline of submissions as to why the proceedings should be summarily dismissed.
On 21 September 2023 there was a directions hearing before Simon PM. The hearing on 16 and 17 October 2023 was vacated, so that the application for summary dismissal could be dealt with first. Procedural directions were made for the applicant to file and serve material that she relied upon in response to the summary dismissal application; and for the respondent to file and serve any material in reply. The summary dismissal application was listed for hearing on 31 October 2023.
On 31 October 2023, the applicant appeared and Mr McDonald, Solicitor, appeared for the respondent.
At the hearing, there was confusion and debate about what materials the parties were relying upon in the summary dismissal application; whether those materials had been filed and served; and whether those materials were accessible. To clarify such issues and accord procedural fairness to both parties, the Tribunal regarded it as appropriate to adjourn the hearing.
The Tribunal made procedural directions that the respondent (as the moving party in the summary dismissal application): 1. File with the Tribunal the 274 pages of material referred to in paragraph 8 of its written submissions on the summary dismissal application (i.e. the original discrimination complaint and the documents attached to the complaint referred to previously in these reasons) by 1 November 2022; and 2. File the attachments to the applicant's email of 9 October 0223 that had the subject heading "File 2023/0013882 Response to Dismissal Application) by 1 November 2022.
Further, it was ordered that such documentary material (as distinct from written and oral submissions) but the only documents that will be taken into consideration in the summary dismissal application.
The Tribunal also noted that the respondent did not seek to file and serve any documents in reply in respect of the summary dismissal application.
The matter was next listed for hearing on 17 November 2023. Mr McDonald, Solicitor, appeared for the respondent. The applicant appeared. Both parties made oral submissions in respect of the application for summary dismissal.

Documents Relied Upon in the Summary Dismissal Application

As discussed previously, the documents admitted into evidence in the summary dismissal application were as follows: 1. The complaint, with the documents attached to the complaint (274 pages); and 2. The email of the applicant to the Tribunal dated 9 October 2023 and the documents attached to that email.
It is unnecessary to repeat the original complaint and documents attached to the complaint.
The email of 9 October 2023 contains a brief summary of the applicant's arguments as to why the proceedings should not be summarily dismissed. It refers to a number of documents (including further reports of Ms Wastell) that "can be provided if necessary" as evidence that the student has a disability, and that the respondent has acknowledged she has a disability.
However, the procedural directions set out previously in detail obliged the parties to file and serve all the documents relied upon in support of, and in opposition to, the summary dismissal application. The applicant had the opportunity to determine what documents she thought were relevant to the summary dismissal application, and which she sought to rely upon. It is a matter for each party to determine what evidentiary material is sought to be relied upon.
The documents attached to the applicant's email of 9 October 2022 are not individually page numbered. They are summarised as follows: 1. A document "Complaint about Parenting Concerns" that refers to events between 2 June 2020 and 9 September 2020. Not only is that document dealing with events earlier than those which form the substance of the complaint, the document does not make any specific reference to any disability of the applicant's daughter. 2. Paediatric Co-ordination Team Meeting School Information Form. This document refers to a son of the applicant, and not her daughter. 3. A screen shot of a diary entry. This document refers to a son of the applicant, not the applicant's daughter. 4. A series of emails in the period between 17 July 2020 and 9 September 2020. Those emails not only predate the period referred to in the complaint, but refer in substance to all of the children of the applicant in the context of the applicant asserting that she was acting in the best interests of her children by proactively raising issues with the respondent. 5. A report of Ms Hughes, speech pathologist, regarding the applicant's daughter dated 12 December 2017. 6. Reports of Ms Wastell, speech pathologist, regarding the applicant's daughter dated 5 September 2018; 23 July 2019; 27 October 2020; and 21 July 2022. 7. Individual Health Care Plan to the respondent in respect of the applicant's daughter for Year 4. 8. Report of Ms Hearn, clinical psychologist, in respect of the applicant's daughter dated 21 June 2021. 9. Integration Funding Support Student Annual Review document of the respondent in respect of the applicant's daughter dated 20 October 2021. 10. Extract from DSM-5 "Specific Learning Disorder".

Submissions of the Respondent In Support of the Summary Dismissal Application

The submissions of the respondent are the written submissions filed on 14 September 2023 (5 pages) supplemented by the oral submissions made at the hearing.
The first argument of the written submissions refers to extensive contact between the applicant and the respondent; GIPA proceedings involving the applicant; and other Tribunal proceedings (both in the past and present) involving the parties; and the failed resolution of these proceedings arising from the mediation.
At the hearing on 17 November 2023 the Tribunal raised with the respondent whether it was asserting the proceedings should be summarily dismissed because they were vexatious. The written submissions do not clearly state that the respondent is relying upon a ground that the proceedings are vexatious, or an abuse of process. In oral submissions, the respondent stated that the "primary" submission of the respondent was that the proceedings were misconceived or lacking in substance, because they did not disclose an arguable case.
It was not submitted in this application for summary dismissal that any issue pertaining to whether a Deed had been entered into resolving the complaint (and these proceedings) caused the proceedings to be an abuse of process. Accordingly, that issue will not be further explored.

The Issue of Disability

The respondent submits that the material of the respondent "does not a specific spelling disorder" and that the report of Ms Wastell attached to the complaint indicated the tests administered showed the applicant's daughter was in an average, or above average, range (depending on the particular test).

The Issue of Denial or Limitation of Access to a Benefit

The respondent submits that even if the applicant's daughter has a "spelling disorder" sufficient to be a learning disorder that was a "disability," to establish a claim for unlawful discrimination under the AD Act, the applicant had to prove that as a result of a disability the applicant's daughter had been denied a benefit or has been subjected to a detriment.
The respondent relied upon the following passage in FSO v Secretary, Department of Education [2023] NSWCATAD 102 (FSO) at [20]-[21]: The Applicant carries the onus of proving that the conduct of the Respondent complained of is unlawful under the Act. (See, for example, Wright v Commissioner of Police [2014] NSWCATAP 67 at [24]). In this case, the Applicant needs to establish that the conduct complained of is unlawful in contravention of s 49L(2) of the Act. That section makes unlawful conduct amounting to discrimination within the meaning of s 49B (see FLM v State of New South Wales (Department of Education) [2022] NSWCATAD 26 at [12]) (relying on Waters & Ors v Public Transport Corporation (1991) 173 CLR 349 at 392). In order to succeed, the Applicant must thus establish that on Friday, 6 August 2021 the students were as a matter of fact denied access to benefits, or that the Respondent limited their access to benefits, or that the students were subjected to "any other detriment" in respect of their respective adjustments.
The respondent submitted that the applicant's daughter was not denied a "benefit" within the AD Act.
The basis of this submission is that the only "benefits" referred to are ss 3.4., 5.2(2), 6.2(2), 7.2(2) and 8.3 of the Disability Standards for Education (2005) introduced under the Disability Discrimination Act 1992 (C'th).
The respondent's written submission states (at para [14]): As is made clear in FLM v State of NSW (Department of Education) the rights provided by the Standards are not a "benefit" provided by the School within the meaning of section 49L(2)(a) of the ADA.
The Tribunal stated in FLM v State of NSW (Department of Education) [2022] NSWCATAD 36 (FLM) (paras [84] and [87]): Even if s 49B(1)(b) is made out by the Applicant, that conduct is not unlawful unless s 49L(2) is satisfied. The Tribunal must consider whether requiring FLN to participate in classroom learning without a teacher's aide/SLSO was denying or limiting his access to a 'benefit' provided by the School; or subjecting him to 'any other detriment,' within the meaning of s 49L(2)(a) of the Act. The leave granted to the Applicant pursuant to s 96 of the Act excluded all of her complaints other than the failure of the School to provide FLN with a teacher's aide/SLSO, anticipating by the wording of "contravened s 49L(2) of the Act by subjecting FLN to a detriment and/or denying or limiting his access to a benefit provided by the School" that this failure could possibly be viewed as a detriment, a denial or limitation on access to a benefit, or both. The difference between a benefit and a detriment has been considered in the context of federal disability discrimination, particularly in cases involving disability discrimination in the context of employment such as McBride v Victoria (No 1) [2003] FMCA 285 at [55], [61] and Ware v OAMPS Insurance Brokers Ltd [2005] FMCA 664 at [102] to [104], but is also applicable to disability discrimination in other contexts or jurisdictions where the same language is used in the legislation, as it is here. … The Applicant's evidence and submissions do not identify, with any particularity, the benefit or benefits to which FLN's access was said to be denied or limited by the Respondent. Assuming (in the circumstances) that the "benefit" in question was submitted to be the provision of SLSO assistance to FLN by the School, the Tribunal rejects that submission. Following Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 202 ALR 133, the Disability Standards for Education (2005) (Disability Standards) were introduced under the Commonwealth Disability Discrimination Act 1992 requiring the Respondent to assist students with a disability, such as FLN, to access education and ensure their participation in class. The Disability Standards provide FLN with the right to specialised services - such as a SLSO - needed to participate in the educational activities they are enrolled in. The provision of an SLSO is therefore not a "benefit" provided by the School or the Respondent within the meaning of s49L(2)(a). (emphasis added)
The respondent submits that, in addition to the opportunity to consult not being a "benefit" (because the Standards are not a "benefit"), there is overwhelming and compelling evidence that the applicant was given ample opportunities to consult with the school about the medical and learning issues involving her daughter. The respondent also refers to the factual background set out in FSO.

The Issue of Subjection to a Detriment

The respondent submits that there is no evidence that any of the matters complained of by the applicant have caused a "detriment" under s 49L(2)(c) of the AD Act. Rather, the evidence from the applicant's daughter's speech pathologist Ms Wastell is that the applicant's daughter's spelling has improved over the period of the complaint, and that a school reading and comprehension tests show academic progress above her cohort.

Discrimination on Grounds of Disability-s 49B of the AD Act

The respondent submits that the applicant's proceedings cannot succeed because she cannot demonstrate discrimination on the grounds of disability under s 49B.
The respondent relies upon ZDB v University of Newcastle [2017] NSWCATAP 70 at [213]-[214]: If there is no discrimination on the ground of disability falling within the descriptions in s 49B, it does not matter whether the conduct occurred in one or more of the circumstances set out in Divs 2 and 3 of that Part, ss 49D - 49O. Consequently, since the Tribunal found that the relevant conduct did not amount to discrimination on the ground of disability within s 49B, it could not be unlawful discrimination under any of the provisions of Divs 2 and 3 of Pt 4 of the AD Act. Thus, it was unnecessary for the Tribunal to refer to or make findings concerning whether the conduct occurred in circumstances that would fall within s 49L(2)(a) or (c). Further, to the extent that the appellant did not or was not permitted to rely on these provisions at first instance, they should not be allowed to be raised on appeal.
The respondent submits that there cannot be any discrimination on the grounds of disability because the applicant's daughter has been provided with assistance by an SLSO. The applicant alleges in the complaint that her daughter has not been provided with direct assistance (being face to face teaching) from an LaST, which the applicant asserts is a more highly qualified and trained person to assist with the disability of the applicant's daughter.
The respondent submits that there is clear evidence from Mr Campbell of the respondent in a letter from Mr Campbell to the applicant dated 22 December 2021 that the SLSO provided direct support; liaised with Ms Wastell; and provided information and support to the applicant's daughter's classroom teacher.
The letter states that that there was an LaST at the school, and the LaST proved "contact and support…as required" to the applicant's daughter.
The respondent submits that: Whether or not (the applicant) consider the SLSO (supporting the classroom teacher with the assistance of the LaST and the speech pathologist) was a reasonable adjustment, it cannot be unlawful discrimination because s 49L of the ADA has not been made out.

Applicant's Submissions

The applicant's written submissions dated 9 October 2023 opposing the summary dismissal application are, with respect, not of great assistance on the legal issues for determination. Those submissions, in addition to referring to the applicant's daughter having a disability, refer to the applicant's character and motivation in bringing the complaint as an 'advocate' for persons with a disability.
The applicant's oral submissions on 17 November 2023 opposing the summary dismissal application referred to the following arguments: 1. The medical reports, including the reports from Ms Wastell, establishes that the applicant's daughter has disabilities, that include a learning disability in respect of spelling. 2. The testing results of the applicant's daughter primarily involve reading comprehension rather than spelling. 3. The respondent has not denied previously that the applicant's daughter has disabilities, and has provided adjustments on that basis. 4. Failure to follow, or implement, policies of the respondent as reflected in the Standards can cause denial or limitation of access to a benefit, or the causing of a detriment. 5. An SLSO does not have sufficient training and expertise for the applicant's daughter's learning disabilities. 6. The applicant's daughter's disability requires direct face to face involvement by a LaST and a Speech Therapist. 7. The respondent has the resources available to provide a Speech Therapist. The applicant has been forced to privately fund a Speech Therapist when the respondent should provide this type of support to the applicant's daughter due to her disabilities. 8. The respondent has failed to comply with the Standards by failing to adequately consult with the applicant.

Summary Dismissal-Applicable Principles

Pursuant to s 102 of the AD Act, the Tribunal may, at any stage of the proceedings, dismiss the whole or part of any complaint on a ground on which the President of the Anti-Discrimination Board may decline the whole or any part of the complaint under s 92 (1) (a) (i) or (ii) or (b).
Section 92 of the AD Act relevantly states: 92 President may decline complaint during investigation (1) If at any stage of the President's investigation of a complaint - (a) the President is satisfied that - (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or (ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or … (b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint. …
The Tribunal also has a separate power to summarily dismiss proceedings under s 55 (1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). That provision relevantly states: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances - … (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, …
For the respondent to succeed in the application, it must satisfy the Tribunal that the complaint is, in whole or part, frivolous, vexatious, misconceived or lacking in substance.
There is a high threshold the respondent must satisfy for proceedings to be summarily dismissed, rather than proceed to final hearing and be determined on the merits.
In BTH v The Public Guardian [2017] NSWCATAP 10 at [52] the Appeal Panel cited with approval the following passage from Burns v Sunol [2015] NSWCATCD 178 at [6]: The discretion to dismiss a complaint summarily, i.e. without full hearing, under s 102 (formerly s 111(1) of the Act) must be exercised with exceptional caution and only if the circumstances clearly warrant such action. (See Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [27]; Alchin v Rail Corporation NSW [2012] NSWADT 142 at [20]; Rae v Commissioner of Police NSW (No 2) [2010] NSWADT 36 at [84]; Commissioner of Police, N0ew South Wales Police Service v Orr [2001] NSWADTAP 16; Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73.)
In Seventh-Day Adventist Church (North NSW Conference) Limited v Seupele-Feau [2016] NSWCATAP 256 stated at [22]-[24]: In Han v NSW Department of Health [2006] NSW ADT 113 the Tribunal was confronted with the question of the standard which was required to be satisfied before a strike out application should succeed. In that matter, the respondent sought to strike out the claim against it pursuant to s 102 on the basis that the complaints were misconceived, frivolous, vexatious and lacking in substance. Even if the conduct complained of was proved, it would not disclose a contravention of the provisions of the Act. In its deliberations, the Tribunal referred to another Tribunal decision, namely Fricke v Corbett Research Pty Ltd [2004] NSW ADT 128, where the following appears: "Ultimately, it is for each Tribunal to determine the application according to its own circumstances. It is for the Tribunal to decide whether the application should be heard and determined prior to the full hearing of the complainant's case. It has been suggested that "prior to the Tribunal commencing a hearing on the merits, it is difficult, if not impossible, for the Tribunal to determine whether there may be substance to a complainant's allegations. Generally, it is far more appropriate that the merits of a complainant's case be reviewed as a hearing into the merits proceeds, rather than on a pre - hearing basis." The quotation from Fricke continues: "The standard of satisfaction for a [strikeout] application is quite high. The Tribunal must be satisfied in effect that the complainant has no chance of succeeding on the evidence as set out before it. It is not appropriate to find that discrimination has taken place on the mere assertion by the complainant that it is so and in the absence of evidence to that effect. The complainant must, to establish the existence of discrimination, establish objective facts from which to infer the other facts which he sought to establish… The Tribunal approaches its role by seeing whether the facts as stated by a complainant at their highest to show that there may be grounds on which to decide that the complaint either ought to be dismissed or alternatively, permitted to proceed to a full hearing, in which case the respondent's evidence will be called." The appellant submitted that Wickstead anor v Browne (1992) 30 NSWLR 1 is authority for the proposition that on a strike out application the Tribunal must examine the evidentiary materials placed before it, not for the purpose of making findings of fact but to determine whether a triable issue is disclosed. However we consider, as per Fricke above, that the decision maker is only required to determine whether the claims made are foredoomed to fail. The Tribunal on a summary dismissal application is not required to embark on a full hearing. It is a discretionary decision that must be made as to whether the proceedings have some prospects of success. If such a decision is reached, then the principles are clear that the application for summary judgment cannot succeed. Only in the clearest case should the power to strike out proceedings as disclosing no cause of action be exercised: see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. Each case for strike out must be determined on its merits.
The above authority deals with the issue of whether proceedings are misconceived and lacking in substance. Whether proceedings are frivolous or vexatious are separate issues.
The applicable principles for summary dismissal under s 55(1)(b) of the NCAT Act are, in substance, the same principles as under s 102 of the AD Act.
In respect of whether the proceedings should be summarily dismissed due to being misconceived or lacking in substance such that a final hearing on the merits is not warranted, the Tribunal must consider on the basis of the grounds of the complaint and the documentary material whether it is arguable that: 1. The applicant's daughter has a disability within the definition contained in ss 4(1) and 49A of the AD Act; 2. The respondent engaged in discrimination under s 49B(1)(b) of the AD Act; and 3. The respondent discriminated against the applicant's daughter by denying or limiting her access to any benefit provided the respondent; or subjecting her to any other detriment on the ground of disability (s 49L(2)(a) and (c) of the AD Act).

Does the Applicant's Daughter Arguably Have a Disability?

The respondent's submissions on this issue only refer to the material contained in the complaint not establishing the applicant's daughter has a "specific spelling disorder."
Whether the applicant's daughter has a disability as defined by the AD Act is a question that involves factual findings being applied to the legal definition for "disability" under the AD Act.
The documentary materials in the summary dismissal application contain a number of medical reports and speech pathology reports. A report of Dr Hearn, clinical psychologist, dated 21 June 2021 refers to the applicant's daughter having the following conditions: 1. Autism Spectrum Disorder without accompanying intellectual or language impairment (Level 2). 2. Attention Deficit Hyperactivity Disorder (ADHD, combined presentation). 3. General Anxiety Disorder 4. Specific Learning Disorder with impairment in written expression (spelling).
The report of Ms Wastell, speech pathologist, dated 21 October 2020 refers to the applicant's daughter having "a specific learning disorder with marked deficits in spelling development". Ms Wastell's report of 21 July 2022 refers to the applicant's daughter having made "steady improvement in all areas of spelling during the course of her therapy blocks". The report then refers to various tests performed, and notes areas of improvement. However, the report makes various recommendations and that "learning support staff and classroom teachers develop strategies to assist (the applicant's daughter) to further develop her literacy skills."
The content of such reports, and the documents of the respondent regarding various health plans and learning plans for the applicant's daughter do not establish it is unarguable that the applicant's daughter has a disability within the meaning of the AD Act.

Did The Respondent Arguably Deny or Limit Access to Any Benefit, or Subject Her to Any Other Detriment on The Grounds of Disability?

The respondent submits that compliance with the Standards are not a "benefit" within the meaning of the AD Act, and relies on FLM to support that proposition. The relevant paragraphs have been set out previously in this decision (in particular, para [87]).
From the perspective of a summary dismissal application (rather than a final hearing on the merits) there are a number of flaws to that submission.
Firstly, the decision in FLM is a decision of the Tribunal at first instance. The respondent has not provided reference to any decision of the Appeal Panel or a Court to support the proposition that the Standards cannot fall within the definition of a "benefit" in s 49L(2)(a) of the AD Act.
Although comity of decision making is an important principle, the doctrine of precedent does not compel another Tribunal to come to the same conclusion in the absence of any binding Appeal Panel or Court authorities.
Secondly, the Tribunal's reasoning in para [87] is brief, and arguably obiter dicta. The last two sentences of para [87] is in the context of the provision of an SLSO being provided to "participate in the educational activities (the children) are enrolled in". That is not a finding that compliance with the Standards can never, in any circumstances, constitute a "benefit" under s 49L(2)(a) of the AD Act.
In respect of the respondent's submission that access to a benefit was not denied or limited, that is a question of fact to be determined on all the evidence. The respondent points to findings in other proceedings between the parties, and the letter of Mr Campbell as evidence of extensive consultation. However, it is the relevant period identified in this complaint that is of critical relevance. The evidence has not been tested or final submissions made upon it. The Tribunal is not satisfied that it is "clearly unarguable" that factual findings could be made in favour of the applicant.
The next issue under s 49L is "detriment" under s 49L(2)(c) of the AD Act. The written submission of the respondent at paras [22]-[23] only refers to it being unarguable there was no detriment because there has been a "steady improvement" in the applicant's daughter's spelling.
In oral submissions, the respondent referred to the applicant arguing in other proceedings that provision of an SLSO for a period of less than 5 days per week was a detriment, but now seeking to argue that it was the failure to provide an LaST as being the relevant detriment.
That submission does not clearly engage with what is being asserted in the complaint. The complaint refers to the failure to take reasonable measures to provide an LaST as the denial or restriction of a benefit rather than the causing of a detriment. The majority of the complaint is framed on the basis that the respondent has denied or restricted access to a benefit, not that a detriment has been caused.
Ultimately, whether or not there has been denial or restriction of access to a benefit or the causing of a detriment involve factual findings that can only appropriately be made after the assessment of the evidence at a final hearing, rather than on an interlocutory basis. There is sufficient evidence before the Tribunal that the respondent has failed to establish that it is "clearly unarguable" the applicant's daughter has been denied or restricted access to a benefit under s 49L(2)(a) or (c) of the AD Act.

Section 49B

It is well established that s 49L cannot be considered in isolation, and to establish the relevant cause of action the applicant will have to establish discrimination under s 49B.
The Tribunal expressed this requirement in FLM as follows at [12]: What amounts to discrimination for the purposes of section 49L is to be derived in the first instance from the relevant definition provided by section 49B: Waters v Public Transport Corporation (1991) 173 CLR 349 (Waters) at 392 per Dawson and Toohey JJ. That is because section 49L makes unlawful (in the circumstances set out in that section) acts amounting to discrimination within the meaning of section 49B: Waters at 392. In other words, a finding of discriminatory conduct under section 49B is not unlawful unless that conduct also contravenes section 49L.
In the complaint, the applicant referred to s 49B of the AD Act as follows: (The applicant's daughter's needs) require specialised, individual adjustments. To be able to implement these adjustments, she needs a suitably qualified teacher, trained in the specific area of needs. By allocating all IFS funds to an SLSO (the applicant's daughter) is only able to access supports that an SLSO can provide, restricting her access to support, which is unreasonable.
To establish s 49B (1)(b), the applicant will have to establish that, on ground of disability (either direct or indirect) the respondent required the applicant's daughter to comply with a requirement or condition which a substantially higher proportion of persons who do not have that disability (or do not have a relative or associate who has that disability) comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
The Tribunal accepts that there is not a clear articulation in the applicant's complaint how the alleged failure to adhere to the Standards, or the failure to provide a face to face LaST rather than an SLSO, involves a requirement or condition (which a substantially higher proportion of persons who do not have that disability comply with, or are able to comply with), and requirement is not reasonable, and the applicant's daughter does not or is not able to comply.
However, balanced against that is the brevity of the respondent's submissions as to why it is clearly unarguable that s 49B(1)(b) has been breached.
As s 49B(1)(b) involves regard to "all the circumstances of the case" and the evidence has not been tested or factual findings made, the Tribunal is not satisfied the respondent has proved that breach of s 49B(1)(b) is clearly unarguable, such that the proceedings should be summarily dismissed.

Frivolous or Vexatious

The respondent's oral submissions indicated that in addition to the proceedings being misconceived and lacking in substance, the respondent sought to argue that they were vexatious. It was not clearly submitted that the respondent relied on an argument that the proceedings were frivolous, but for the sake of completeness the Tribunal will also deal with that issue.
In Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491, vexatious proceedings are referred to in the following terms: 1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought. 2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise. 3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
The Tribunal is not satisfied the proceedings are vexatious. Although there is a history of litigation in the Tribunal between the parties, the Tribunal is not satisfied that they fall within the definition of vexatious, nor that they are frivolous.

Conclusion

The respondent has failed to establish that the proceedings should be summarily dismissed. As discussed previously, there is a high bar for summary dismissal. The respondent has failed to exceed that bar.
The Tribunal is not satisfied that the proceedings should be summarily dismissed, in whole or part.
In dismissing the summary dismissal application, the Tribunal expresses no concluded view of the ultimate merits of the application. The failure of the respondent in the summary dismissal application has no bearing on the outcome of a final hearing on the merits. Whether or not the applicant will ultimately succeed in the application after it is determined on the merits is a matter of speculation, and the consequence of failure may involve a costs application under s 60 of the NCAT Act. The parties are also encouraged to have further discussions in an attempt to resolve the dispute.

ORDERS 1. The respondent's application for miscellaneous orders (summary dismissal) is dismissed. 2. The proceedings are to be listed before the Tribunal for a procedural directions hearing at a date to be allocated by the Tribunal Registry, with a view to setting the proceedings down for final hearing and making any further appropriate procedural directions.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 March 2024

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